'Don't ask, don't tell' appeals process continues

By
Ed O'Keefe

Updated 11:33 p.m.ET
Legal wrangling over the military's "don't ask, don't tell" policy continued Monday, as the group suing to end it once again blasted the Obama administration's defense of the policy and another gay rights organization said the ban is indirectly responsible for the recent wave of suicides by gay teenagers.

The Log Cabin Republicans, a pro-gay group that is challenging the constitutionality of "don't ask, don't tell," filed papers Monday with the Court of Appeals for the 9th Circuit in opposition to last week's decision by three of its judges to lift an injunction on the ban, which prohibits gays from serving openly in the military. The group criticized the Obama administration's legal arguments in defense of the ban and reiterated that the policy unfairly affects gay and lesbian troops.

The Justice Department "does not even attempt to refute the fact that the constitutional rights of current and prospective gay and lesbian service members will continue to be violated during any stay," said Dan Woods, a lawyer representing the Log Cabin Republicans. "It remains sad and disappointing that the government seeks to continue to enforce 'don't ask, don't tell' by its motion for a stay pending appeal, even as the President has repeatedly said that the policy 'weakens' our national security."

President Obama opposes the ban and wants Congress to repeal the law through legislation. Representatives from gay rights groups are expected to meet Tuesday with White House officials to discuss ongoing repeal efforts, according to administration officials.

"The Obama administration is putting paperwork ahead of the fundamental constitutional rights of service members," the Log Cabin Republicans' executive director, R. Clarke Cooper, said Monday. "This is just another in a long line of delay tactics from a president who has not missed an opportunity to defend this policy in court."

Lambda Legal argued that the government's continued enforcement of "don't ask, don't tell" "exacts an intolerably high cost" on the mental and physical health of gay and lesbian service members because they "must remain on constant high alert, self-policing every word, gesture, and glance that could arouse suspicion regarding their sexual orientation."

The policy is also indirectly affecting young gays and lesbians who face verbal or physical harassment for their sexual orientation, Lambda said, citing recent suicides by eight gay teenagers ranging in age from 13 to 19.

"The government cannot plausibly claim that its actions are unrelated to such tragedies and abuses, so long as it remains the nation's leading model for open discrimination against [gay and lesbian] people," Lambda said in court papers.

"It is absurd to pretend that the staggering rates of suicide among gay and lesbian teens that have been recently reported magically sprang into existence, without any connection to what adults are saying and doing," said Peter Renn, a Lambda Legal staff lawyer. "The government needs to take its head out of the sand and look around at the damage to which it is contributing."

"There's definitely a link between 'don't ask, don't tell' and gay suicides," said SLDN Executive Director Aubrey Sarvis. A client of his group who is being investigated for possibly violating the policy was placed on suicide watch last month, Sarvis said. SLDN's brief described the ordeal of three troops -- two of whom it did not identify by name -- who were discharged under the policy.

The Defense Department issued new guidelines after the ruling that assigned five senior military officials to determine when to discharge gay troops. The policy will remain in place until the law is repealed or settled by the courts, the Pentagon said.

DADT exists to protect the privacy rights of heterosexuals. It is illegal to force a person to be naked at work in front of anyone who could become sexually or romatically attracted to him or her. That's why there is sex-segregation of males and females in sleeping, bathing, and dressing areas to begin with.

Remove DADT and you either have to bully and ridicule every heterosexual out of asserting his own or her own rights, or you have to provide private sleeping, bathing, and dressing areas for each soldier.

Radicals will fail to bully everyone into silence (although they are making a heroic effort)... so the days of billeting soldiers on the cheap are ending.

If the judge had courage, she would decree it. Halliburton can build it. Congress can add it to its deficit.

Did I read this right? It's illegal to force a person to be naked at work in front of anyone who could become sexually or romantically attracted to him or her? Where is that law? Now I don't want to see someone naked next to me at work; however, I'm not aware of a law forbidding it. Rather, there is an equal rights standard in the constitution that allows everyone to have equal rights.

And by the way, I go back to the same thing I've said for 16 years....why does every straight guy think every gay guy wants to see him naked and wants to have sex with him. Get a life!

"And by the way, I go back to the same thing I've said for 16 years....why does every straight guy think every gay guy wants to see him naked and wants to have sex with him. Get a life!"

We do not require a woman to say all men are rapists or that she is a beauty queen in order for her to assert a privacy right from all men. Why do we call men homophobes and bigots when they assert a privacy right from all gays?

These are examples of typical patriotic salutes that issue forth from the hearts of true patriotic Americans.

In way of illustrating an interesting contrast in heart orientation, on visiting the website for the U.S. Court of Appeals for the Ninth Circuit, I see that the underlying case is referred to as follows:

Log Cabin Republicans vs. USA

In other words, LCR VERSUS THE USA.

This in a nutshell expresses the totally Anti-American spirit at the heart of these homosexual zealots. They are against the USA. And that of course is the truth. They are tools of the dark forces for the destruction of the American way of life.

CASE UPDATE

It should be noted that the appeal process, as such, has not yet begun. We are only at the stage of arguing over a government motion to stay the lower court opinion pending appeal.

On October 20, 2010, the government requested on an emergency basis, both an “administrative stay”, and a “stay pending appeal”, in regards to the lower court action which enjoined the government from enforcing the (1993) DADT Act worldwide.

The three-judge “motion panel” for the Ninth Circuit Court of Appeals, immediately granted the administrative stay, which is a temporary stay, which remains in effect only for the period of time that it takes for the Court of Appeals to receive additional briefing papers, and then, for it to decide whether the motion for the longer and more permanent “stay pending appeal” should also be granted.

The deadline for briefing papers on this question was yesterday, October 25, 2010.

According to a Court Clerk there is no way to know how long the judges will take to decide on the merits of the government’s motion for the “stay pending appeal”. The decision could come today, or tomorrow, or it might be days, or even weeks before the decision comes down.

In my opinion, it is not unreasonable to expect the judges to sit on this during the upcoming election cycle at least.

But this is for sure. The next thing we will hear from the Ninth Circuit on this case is whether the judges grant the governments motion for a longer “stay pending appeal” or deny it.

If they deny the motion, chaos will begin again to immediately plague the military and its operations. If they grant the motion, the status quo will be maintained over the period of the appeal process. This seems the most reasonable approach.

The court has set up a web page just for this case where you can download pdf copies of the briefing papers filed thus far. Though as of this writing, it has not been updated to reflect the 10/25/10 briefing papers delivered to the court.

On Tuesday, October 26, 2010, 12:12pm, PDT, the Log Cabin “Republicans” have just filed a motion with the Ninth Circuit Court of Appeals for permission to exceed the briefing page limit, and to proceed to do a gigantic document dump upon the appeals court. The document dump includes, by my count, 28 additional separate and distinct PDF files.

Now, the question is, will the attorneys for the U.S.A. be given an opportunity to oppose this motion requesting a document dump? And a chance to file briefs in opposition?